I. BACKGROUND

*1 Presently before the Special Master for resolution is Plaintiffs’ Motion to Compel Defendant Wanhua to Produce Documents as Privileged (the “Motion,” ECF No. 1049) and Memorandum of Law in support thereof (“Pls.’ Mem.,’ ” ECF No. 1050), defendant Wanhua Chemical (America) Co. Ltd.’s (“WCA”) Opposition to thereto (ECF No. 1057, the “Opposition”), and Plaintiffs’ Reply (ECF No. 1059), and all attachments to all the foregoing. By Order dated August 1, 2024, the Honorable W. Scott 1 lardy referred the Motion to the undersigned for resolution (ECF No. 1135).

In the Motion, Plaintiffs move to compel WCA to produce ninety-four documents withheld as protected by the attorney-client privilege (the “Documents’ ”). In the alternative, Plaintiffs request that the Documents be submitted to the Special Master for in camera review. (Pls.’ Mem. at 1.) WCA also consents to referral of the Motion to the undersigned for an in camera review of the Documents. (Opposition at 10 n.6.) WCA submitted the Documents to the Special Master for in camera review, along with its privilege log (the “Privilege Log”) and a list identifying individuals named in the Documents by name and position/title.

II. DISCUSSION

The Attorney-Client Privilege. WCA withheld Documents on the basis of the attorney-client privilege. See Privilege Log. “The attorney-client privilege protects communications between attorneys and clients from compelled disclosure. It applies to any communication that satisfies the following elements: it must be (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.” In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quotation omitted). The party asserting the privilege bears the burden of proving its applicability. Matter of Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 126 (3d Cir. 1986); Fed. Trade Comm'n v. AbbVie, Inc., 2016 WL 4478803, at *2 (E.D. Pa. Aug. 25, 2016). “A proper claim of privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality.” Parisi v. State Farm Mut. Auto. Ins. Co., 2017 WL 4403326, at *4 (W.D. Pa. Oct. 2, 2017). See also SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 482 (E.D. Pa. 2005) (same).

The entries on the Privilege Log for many of the Documents refer to “legal” and or “legal department.” Plaintiffs challenge these entries because they do not identify a specific attorney. As will be discussed in greater detail below, most of these entries involve instances where non-legal employees are, inter alia, discussing issues which they are referring to WCA's legal department for review and advice, or discussing legal advice from attorneys within WCA's legal department. In these entries, while a specific in-house attorney is not named, there is a sufficient “nexus” between the communication and “an attorney.” Schwarz Pharma, Inc. v. Teva Pharms. USA, Inc., 2007 WL 2892744, at *3 (D.N.J. Sept. 27, 2007). “A document need not be authored or addressed to an attorney in order to he properly withheld on attorney-client privilege grounds.... In the ease of a corporate client, privileged communications may be shared by non-attorney employees in order to relay information requested by attorneys.” SmithKline Beecham Corp., 232 F.R.D. at 477 (quotation omitted). See also In re Abilify (Aripiprazole) Prod. Liab. Litig., 2017 WL 6757558, at *6 (N.D. Fl. Dec. 29, 2017) (it is “not uncommon” for corporate employees to not identify a “specific attorney or law firm” in their internal communications and that “is not fatal to the assertion of privilege”): Gionfriddo v. Wal-Mart Stores E. LP, 2010 WL 11711433, at *1 n.1 (E.D. Pa. Sept. 1, 2010) (denied plaintiff's motion to compel a document described on defendant's privilege log as “Correspondence from Wal-Mart Store #2141 to Wal-Mart Legal Department”).

*2 Counsel, especially in-house counsel, often play dual roles of legal counsel and business advisor, rendering legal advice often difficult to distinguish from business advice in a corporate setting. For the attorney-client privilege to apply, the “primary purpose of the communication at issue must be to gain or provide legal assistance.” Paramount Fin. Commc'ns, Inc. v. Broadridge Investor Commc'n Sols., Inc., 2016 WL 5404462, at *2 (E.D. Pa. Sept. 28, 2016). Preliminary or red-lined drafts of documents reflecting attorney-client communications are protected from disclosure since they reveal not only client confidences, but also legal advice and opinions of attorneys, all of which are protected by the attorney-client privilege. Id. Certain categories of documents are generally not privileged even though they include communications with an attorney and include the following: (1) underlying facts; (2) communications seeking business advice: (3) copying any attorney on an email does not make the email privileged; and (4) attaching a communication to a privileged document does not make the attachment privileged. In re Human Tissue Prod. Liab. Litig., 255 F.R.D. 151, 164 (D.N.J. 2008), appeal denied, judgment aff'd, 2009 WL 1097671 (D.N.J. April 23, 2009). “Where a lawyer provides non-legal business advice, the communication is not privileged.” Wachtel v. HealthNet, Inc., 482 F.3d 225, 231 (3d Cir. 2007). However, when a decision or communication involves consideration of various business concerns, the attorney-client privilege applies if the decision “was infused with legal concerns and was reached only after securing legal advice.” Se. Pa. Trans. Auth. v. CaremarkPSC Health, L.P., 254 F.R.D. 253, 258 (E.D. Pa. 2008) (quotation omitted).

B. The Documents

Plaintiffs contend that two distinct categories of documents are being improperly withheld on the basis of privilege in the Privilege Logs: (1) Documents that fail to identify a specific attorney with whom the allegedly privileged communications were made (84 Documents); and (2) Documents that appear to contain business advice rather than legal advice (10 Documents). (Pls.’ Mem at 1.) WCA details the history of negotiations and agreements between itself and Plaintiffs regarding WCA's productions and versions of the Privilege Log. Considering all of the parties’ arguments and applying the legal principles outlined herein, the Special Master has determined that conducting an in camera review of the Documents is the most prudent and expeditious way to settle the disputes between the parties and to move this case forward. The undersigned has carefully reviewed each of the Documents and makes two general observations: (1) the vast majority of the Documents were produced in some form with only very specific redactions; and (2) several of the Documents are duplicates, i.e., Document Nos. 52-55 contain versions of the same entries with identical redactions. The Special Master makes the following recommendations:

1. Documents Providing Insufficient Identification of Attorney Providing Legal Advice. Plaintiffs identify eighty-four entries on the Privilege Log “for which [WCA] failed to identify the specific attorney with whom an allegedly confidential communication was made.” (Pls.’ Mem. at 5 and Ex. A.) The Special Master confirms that all eighty-four documents listed in Plaintiffs’ Exhibit A were submitted by WCA to the Special Master for review.

The Special Master has reviewed these eighty-four Documents and concludes that WCA properly asserted the attorney-client privilege with respect to these Documents. Many of these Documents make reference to a specific in-house attorney as either a recipient or a sender. The communications within the Documents fall into one of the following categories: (1) WCA in-house counsel, “Legal Department” and/or “Legal” are providing legal advice to the recipients of the communication; (2) WCA non-legal personnel are discussing issues about which they intend to seek, or have sought, advice from WCA's “Legal Department” or “Legal;” (3) WCA non-legal personnel are discussing legal advice received from a specific in-house attorney or WCA's “Legal Department” or “Legal;” or (4) WCA non-legal personnel are providing requested information to a specific in-house counsel, the “Legal Department” or “Legal.” These categories of communications are protected by the attorney-client privilege. The Special Master recommends that Plaintiffs’ objections to WCA's assertions of privilege with respect to these eighty-four Documents be DENIED and WCA's assertions of privilege be SUSTAINED.

*3 2. Documents Reflecting Routine Business Advice and Not Legal Advice. Plaintiffs identify ten entries on the Privilege Log “that facially appear to involve business advice rather than legal advice.” (Pls.’ Mem. at 8 and Ex. B.) The Special Master confirms that all ten Documents listed in Plaintiffs’ Exhibit B were submitted by WCA to the Special Master for review. Of these ten Documents, seven were withheld in full, and three were produced with redactions.

WCA accurately states that each of these ten communications identifies a specific in-house counsel involved in the communication. More importantly, the topics of the seven Documents withheld in full and of the redactions in the remaining three Documents, relate to legal advice. The Special Master recommends that Plaintiffs’ objections to WCA's assertions of privilege with respect to these ten Documents be DENIED and WCA's assertions of privilege be SUSTAINED.

III. RECOMMENDATION

AND NOW, this 27th day of August, 2024, it is respectfully

that Plaintiffs’ Motion to Compel Defendant Wanhua to Produce Documents as Privileged (ECF No. 1049) be DENIED and Plaintiffs’ objections to WCA's assertions of privilege with respect to the Documents be OVERRULED as set forth herein.

ORDER

AND NOW, this day of ________, 2024, upon consideration of the Report and Recommendation of Special Master Hon. Thomas J. Rueter (Ret.) dated August 26, 2024, and any objections thereto, the Report and Recommendation is APPROVED and ADOPTED, and it is hereby

that Plaintiffs’ Motion to Compel Defendant Wanhua to Produce Documents as Privileged (ECF No. 1049) is DENIED for the reasons set forth in the Report and Recommendation.

BY THE COURT:

________________________________

Hon. W. Scott Hardy

United States District Judge